The Impact of Foreign Law on Domestic Judgments: India

Because it inherited a common law judicial system, India frequently relies upon foreign judgments in the interpretation of its laws. In fact, reliance on foreign precedents is necessary in certain categories of appellate litigation and adjudication.[1] Indeed, the current Chief Justice of India stated in a lecture that Indian “domestic courts are called upon to engage with foreign precedents in fields such as ‘Conflict of Laws.’ ”[2]

Indian laws are modeled on British statutes and enactments. The fundamental rights of citizens of India under the Constitution of India are based entirely on the U.S. Bill of Rights. As a result, it is imperative that the higher judiciary in India follow the precedents of foreign courts in clarifying the parameters of statutes applied. Courts are also required to review the text and interpretations of international instruments, e.g., treaties, conventions, and declarations. The Chief Justice of India has stated, “In recent years, the decisions of Constitutional Courts in common law jurisdictions such as South Africa, Canada, New Zealand and India have become the primary catalyst behind the growing importance of comparative constitutional law.”[3] In India, as in the jurisdictions mentioned, reliance on foreign precedents has become commonplace in public law litigation.

It is recognized that Indian courts look to international as well as comparative law sources in determining creative strategies for developing norms for the protection of life and liberty guaranteed by Article 21 of the Constitution of India. Reliance on foreign precedents is considered a vital instrumentality for the Indian Supreme Court’s decisions, which have extended constitutional protection to several socio-economic entitlements and causes, such as environmental protection, gender justice, and good governance, among others. Access to foreign legal materials has become much easier because of the development of information and communications technology. Thus, the Indian courts can more easily obtain and review foreign judgments and precedents for use in domestic law interpretations.

Since the promulgation of its Constitution in 1950, courts in India have frequently relied on decisions from other common law jurisdictions, the most prominent among them being the United Kingdom, the United States, Canada, and Australia. The opinions from the courts of these countries have been readily cited and relied on in landmark constitutional cases dealing with the right to privacy, including one such case in which the Supreme Court of India dealt with unauthorized police surveillance and held it was a violation of the “right of privacy” on the facts of the case presented.[4] In upholding this right, the Court relied on numerous decisions of the U.S. Supreme Court.[5] In another instance concerning freedom of the press,[6] the Court relied on the U.S. Supreme Court’s decision in Kovacs v. Cooper.[7] While subsequently upholding the death sentence, the Supreme Court of India relied on the U.S. cases of Furman v. Georgia, Arnold v. Georgia, and Proffitt v. Florida.[8]

In a recent decision of the Delhi High Court, delivered on July 2, 2009, section 377 of the Indian Penal Code (No. 45 of 1876), which describes the offense of homosexuality, was declared a violation of those rights guaranteed under the Constitution.[9] In declaring the provision unconstitutional, the High Court relied on a number of U.S. decisions, including Griswold v. State of Connecticut, where the U.S. Supreme Court invalidated a state law prohibiting the use of drugs or devices of contraception in protecting the right of privacy; Olmstead v. United States, where the Indian Supreme Court especially considered the dissent of Justice Brandeis on the right to privacy; and the landmark abortion decision, Roe v. Wade.[10]